{ "id": 11889703, "name": "THOMAS E. STRICKLAND, Plaintiff-Appellant v. TOWN OF ABERDEEN, Defendant-Appellee", "name_abbreviation": "Strickland v. Town of Aberdeen", "decision_date": "1996-11-05", "docket_number": "No. COA95-1267", "first_page": "430", "last_page": "435", "citations": [ { "type": "official", "cite": "124 N.C. App. 430" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "47 ALR Fed. 206", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "40 L. Ed. 2d 788", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "259 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 698", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573826, 8573804, 8573874, 8573846, 8573783 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0698-03", "/nc/297/0698-02", "/nc/297/0698-05", "/nc/297/0698-04", "/nc/297/0698-01" ] }, { "cite": "254 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548818 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0262-01" ] }, { "cite": "390 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "346", "parenthetical": "citing Jenkins v. Theatres, Inc., 41 N.C. App. 262, 254 S.E.2d 776, disc. review denied, 297 N.C. 698, 259 S.E.2d 295 (1979)" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523601 ], "year": 1990, "pin_cites": [ { "page": "211", "parenthetical": "citing Jenkins v. Theatres, Inc., 41 N.C. App. 262, 254 S.E.2d 776, disc. review denied, 297 N.C. 698, 259 S.E.2d 295 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0209-01" ] }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "329 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725743 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0488-01" ] }, { "cite": "259 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 296", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570816, 8570863, 8570767, 8570650, 8570687 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0296-04", "/nc/298/0296-05", "/nc/298/0296-03", "/nc/298/0296-01", "/nc/298/0296-02" ] }, { "cite": "257 S.E.2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "42 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553908 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/42/0259-01" ] }, { "cite": "254 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "339 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 517", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521851 ], "year": 1986, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0517-01" ] }, { "cite": "370 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516910, 2513367 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0610-01", "/nc/322/0610-02" ] }, { "cite": "365 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "200" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520082 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0033-01" ] }, { "cite": "335 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "stating that a negligence case is one in which a jury as fact finder ordinarily should decide the reasonableness of a party's actions" } ], "opinion_index": 0 }, { "cite": "314 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4691041, 4688166, 4688465, 4696987, 4692317 ], "year": 1985, "pin_cites": [ { "parenthetical": "stating that a negligence case is one in which a jury as fact finder ordinarily should decide the reasonableness of a party's actions" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0666-03", "/nc/314/0666-01", "/nc/314/0666-02", "/nc/314/0666-05", "/nc/314/0666-04" ] }, { "cite": "330 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "stating that a negligence case is one in which a jury as fact finder ordinarily should decide the reasonableness of a party's actions" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 185", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525373 ], "year": 1985, "pin_cites": [ { "parenthetical": "stating that a negligence case is one in which a jury as fact finder ordinarily should decide the reasonableness of a party's actions" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0185-01" ] }, { "cite": "8 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "217 N.C. 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611470 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/217/0495-01" ] } ], "analysis": { "cardinality": 593, "char_count": 11610, "ocr_confidence": 0.754, "pagerank": { "raw": 4.7817273071113374e-08, "percentile": 0.3003030292499679 }, "sha256": "334a9f184581083cfa9371b3e6bcc0fbbd0e4d872a60cc1e603d33831a515f7b", "simhash": "1:700bdc6e047daa18", "word_count": 1841 }, "last_updated": "2023-07-14T17:03:33.335576+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WYNN concur." ], "parties": [ "THOMAS E. STRICKLAND, Plaintiff-Appellant v. TOWN OF ABERDEEN, Defendant-Appellee" ], "opinions": [ { "text": "JOHNSON, Judge.\nPlaintiff Thomas E. Strickland was employed by defendant Town of Aberdeen until 3 September 1988. While employed with defendant, plaintiff was covered by a health insurance policy through Municipal Insurance Trust (hereinafter \u201cMunicipal Insurance\u201d). After leaving defendant\u2019s employ, plaintiff elected to take advantage of COBRA coverage through Municipal Insurance. Defendant\u2019s Employee\u2019s Handbook provided that \u201cfollowing the employee\u2019s termination, COBRA coverage is available for eighteen months.\u201d In addition, the form signed by plaintiff electing COBRA coverage, informed plaintiff that said coverage would only be available for eighteen months. As of March 1990, the eighteen month COBRA coverage expired.\nDefendant was not a party to the insurance contract between plaintiff and Municipal Insurance. However, while under COBRA, plaintiff delivered his monthly premium payments to defendant which, as an accommodation, forwarded that payment to Municipal Administrative Corporation as agent for Municipal Insurance. No money was withheld or paid to defendant for this service. While plaintiffs coverage under COBRA was set to expire as of March 1990, plaintiff continued to make his monthly premium payments to Municipal Insurance in this manner, until August or September 1990.\nIn September 1990, plaintiff incurred approximately $4,000.00 in medical expenses. Plaintiff\u2019s coverage had expired in March 1990, and therefore, these expenses were not covered under COBRA. However, plaintiff did not receive notice of cancellation of COBRA coverage until 30 October 1990. Thereafter, defendant attempted to reimburse plaintiff $571.23 for overpaid premiums, which plaintiff refused to accept.\nConsequently, on 23 June 1993, plaintiff filed a Petition for Declaratory Judgment in Moore County District Court, requesting that defendant be ordered to pay the medical bills in question. On 24 August 1993, defendant filed an Answer and Motions to Dismiss. Defendant\u2019s motions to dismiss came on for hearing before Judge Michael E. Beale on 6 September 1995. After hearing the arguments of both parties and considering all of the evidence before him, Judge Beale entered an order dismissing plaintiff\u2019s action. Plaintiff appeals.\nPlaintiff\u2019s sole argument on appeal is that the trial court erred in granting defendant\u2019s motions to dismiss. We cannot agree.\nGenerally, only questions of law are appropriate to be determined under the Declaratory Judgment Act, North Carolina General Statutes \u00a7 1-253 et seq. While questions of fact necessary to the adjudication of the legal questions involved may be determined in a declaratory judgment action, the remedy is not available for determination of issues of fact alone. Insurance Co. v. Unemployment Compensation Com., 217 N.C. 495, 8 S.E.2d 619 (1940). As such, a negligence action, with unresolved issues of fact, cannot be properly decided under the Declaratory Judgment Act. See Laughter v. Southern Pump & Tank Co., Inc., 75 N.C. App. 185, 330 S.E.2d 51, cert. denied, 314 N.C. 666, 335 S.E.2d 495 (1985) (stating that a negligence case is one in which a jury as fact finder ordinarily should decide the reasonableness of a party\u2019s actions).\nIn the instant action, plaintiff filed a \u201cPetition for Declaratory Judgment\u201d in which he alleged (1) \u201cthat the Town was negligent in that it failed to notify the insurance carrier of the cancellation, and failed to notify Mr. Strickland that he had been terminated off of the group coverage as of March 3,1990\u201d; (2) \u201cthat the Town was negligent in continuing to accept payments for insurance premiums when it knew, or should have known, that he was not covered\u201d; and (3) \u201c[t]hat the [defendant] contends that it was not negligent and that the Town has no liability in the matter.\u201d Therein, on the face of plaintiff\u2019s complaint, is revealed a factual issue to be determined by a jury and not by a trial judge in a declaratory judgment action. Accordingly, the trial court correctly determined that this action was not proper under the Declaratory Judgment Act.\nPlaintiff also contends that the designation of the pleading as a \u201cPetition for Declaratory Judgment\u201d was immaterial surplusage, and should have been disregarded in the interests of justice. See Wentz v. Unifi., Inc., 89 N.C. App. 33, 365 S.E.2d 198, disc. review denied, 322 N.C. 610, 370 S.E.2d 257 (1988) (stating that \u201c[t]he adoption of the notice theory of pleading indicated the legislature\u2019s intention that controversies be resolved on their merits, \u2018. . . following [ ] opportunity for discovery, rather than resolving them on technicalities of pleadings.\u2019 \u201d Id. at 38, 365 S.E.2d at 200 (quoting Smith v. City of Charlotte, 79 N.C. App. 517, 528, 339 S.E.2d 844, 851 (1986))). Notably, however, in Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979), our Supreme Court noted that the allegations of a mislabeled claim must still reveal that plaintiff has properly stated a claim under some legal theory.\nAssuming arguendo that the designation of the pleading was mere surplusage as plaintiff contends, we must now address the proper procedural posture under which we consider this contention. If matters outside of the pleadings are presented and not excluded by the trial court, a Rule 12(b)(6) motion to dismiss is converted to a Rule 56 motion for summary judgment; and the inquiry then becomes whether there is any genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Industries, Inc. v. Construction Co., 42 N.C. App. 259, 257 S.E.2d 50, disc. review denied, 298 N.C. 296, 259 S.E.2d 301 (1979). In contrast to a Rule 12(b)(6) motion, a Rule 56 motion embraces matters outside of the pleadings \u2014 for example, affidavits, depositions, and other information obtained through discovery. Id.\nIn the instant action, plaintiff filed a \u201cPetition for Declaratory Judgment.\u201d Defendant Town filed an answer, therein including several motions to dismiss. On 6 September 1995, this matter came on for pre-trial conference and hearing on defendant\u2019s motions to dismiss. After reviewing the file and hearing arguments of counsel, the trial court entered an order on 7 September 1995, dismissing this action as being inappropriate under the Declaratory Judgment Act. As the trial court considered evidence outside of the pleadings, defendant\u2019s 12(b)(6) motion was converted to a Rule 56 motion for summary judgment.\nOur inquiry, therefore, is whether in the light most favorable to plaintiff, the evidence shows that there is no genuine issue as to any material fact and that defendant was entitled to judgment as a matter of law. See N.C.R. Civ. P. 56; Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 329 S.E.2d 350 (1985). The moving party bears the burden to establish the lack of issue of triable fact; and may meet this burden if it can show that an essential element of the non-moving party\u2019s claim does not exist, or the non-moving party cannot produce evidence of an essential element of his claim, or cannot overcome an affirmative defense which would bar the claim. Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).\nIn order to establish a prima facie case for negligence, plaintiff must introduce evidence tending to show that \u201cdefendant had a duty to conform to a certain standard of conduct, that defendant breached that duty, that plaintiff was injured, and that plaintiff\u2019s injury was proximately caused by the breach.\u201d Simpson v. Cotton, 98 N.C. App. 209, 211, 390 S.E.2d 345, 346 (1990) (citing Jenkins v. Theatres, Inc., 41 N.C. App. 262, 254 S.E.2d 776, disc. review denied, 297 N.C. 698, 259 S.E.2d 295 (1979)).\nHowever, the facts of this case disclose no duty that defendant owed plaintiff, other than the duty that the Town embarked upon\u2014 the duty to utilize ordinary care in transmitting the moneys submitted to it to plaintiff\u2019s insurer. As plaintiff has alleged no other duty to exist, nor any breach thereof, plaintiff cannot establish a prima facie case for negligence.\nIn light of the foregoing, the trial court\u2019s decision is affirmed.\nAffirmed.\nJudges LEWIS and WYNN concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Cunningham, Dedmond, Petersen & Smith, by Bruce T. Cunningham, Jr., for plaintiff-appellant.", "Brown & Robbins, L.L.P., by P. Wayne Robbins and Carol M. White, for defendant-appellee." ], "corrections": "", "head_matter": "THOMAS E. STRICKLAND, Plaintiff-Appellant v. TOWN OF ABERDEEN, Defendant-Appellee\nNo. COA95-1267\n(Filed 5 November 1996)\n1. Declaratory Judgment Actions \u00a7 3 (NCI4th)\u2014 negligence action \u2014 question of fact \u2014 not proper\nThe trial court correctly determined that an action was not proper under the Declaratory Judgment Act where plaintiff alleged that defendant was negligent in failing to notify an insurance carrier of a cancellation and failing to notify plaintiff that he had been terminated from group coverage, and negligent in continuing to accept payments for insurance premiums. While questions of fact necessary to the adjudication of the legal questions involved may be determined in a declaratory judgment action, the remedy is not available for determination of issues of fact alone and a negligence action, with unresolved issues of fact, cannot properly be decided under the Declaratory Judgment Act.\nAm Jur 2d, Declaratory Judgments \u00a7 32.\nSupreme Court\u2019s view as to what is a case or controversy within the meaning of Article III of federal constitution or an actual controversy within the meaning of Declaratory Judgment Act (28 USCS \u00a7 2201). 40 L. Ed. 2d 788.\n2. Pleadings \u00a7 14 (NCI4th)\u2014 notice pleading \u2014 petition for declaratory judgment \u2014 surplusage\u2014claim under some theory still required\nAlthough a plaintiff contended that the designation of the pleading in a negligence action as a \u201cpetition for declaratory judgment\u201d was immaterial surplusage and should have been disregarded, the allegations of a mislabeled claim must still reveal that plaintiff has a claim under some legal theory.\nAm Jur 2d, Pleading \u00a7 69.\n3. Pleadings \u00a7 117 (NCI4th)\u2014 12(b)(6) motion to dismiss\u2014 consideration of matters outside pleadings \u2014 converted to motion for summary judgment\nA defendant\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) was converted to a Rule 56 motion for summary judgment where plaintiff filed a \u201cPetition for Declaratory Judgment\u201d; defendant Town filed an answer, including several motions to dismiss; after reviewing the file and hearing arguments of counsel, the trial court entered an order dismissing the action as being inappropriate under the Declaratory Judgment Act. The motion was converted to a motion for summary judgment because the trial court considered evidence outside the pleadings.\nAm Jur 2d, Summary Judgment \u00a7 13.\nSufficiency of showing, under Rule 56(f) of Federal Rules of Civil Procedure, of inability to present by affidavit facts justifying opposition to motion for summary judgment. 47 ALR Fed. 206.\n4. Negligence \u00a7 95 (NCI4th)\u2014 acceptance of insurance premiums \u2014 duty owed\nPlaintiff could not establish a prima facie case for negligence where defendant town had accepted insurance premiums for plaintiff for COBRA coverage beyond the expiration date and forwarded them to the insurer. The facts of the case disclose no duty that defendant owed plaintiff other than the duty to utilize ordinary care in transmitting the money- submitted to it to the insurer, the duty that the Town embarked upon.\nAm Jur 2d, Negligence \u00a7\u00a7 435, 922, 1920.\nAppeal by plaintiff from order entered 7 September 1995 by Judge Michael E. Beale in Moore County District Court. Heard in the Court of Appeals 26 August 1996.\nCunningham, Dedmond, Petersen & Smith, by Bruce T. Cunningham, Jr., for plaintiff-appellant.\nBrown & Robbins, L.L.P., by P. Wayne Robbins and Carol M. White, for defendant-appellee." }, "file_name": "0430-01", "first_page_order": 468, "last_page_order": 473 }